Fighting COVID-19 Digital Rights Violations: Our New Litigation Fund

By Thomas Vink, 8th June 2020

On 8 June 2020, DFF launched the COVID-19 Litigation Fund. The fund supports rapid response strategic litigation that challenges digital rights violations committed in the context of the COVID-19 pandemic.

We started this fund because measures brought in by politicians, authorities and businesses in response to the pandemic will have ramifications for digital rights for years to come.

Some of these measures have a detrimental impact on our human rights in the digital sphere: our right to privacy can be violated by invasive “Corona apps”, our right to access information is hampered when the free press is limited or even silenced, and the use of AI to help allocate health resources could lead to discrimination and unequal access to essential services.

Strategic litigation, alongside advocacy and other efforts, has a major role to play in challenging the most egregious measures. The fund enables activists and litigators to start bringing legal challenges now to halt or limit the impact of digital right-infringing measures.

COVID-19 – A Crisis for Digital Rights

Back in April, we called the COVID-19 pandemic a crisis for digital rights. This crisis shows no signs of abating.

Back in April, we called the COVID-19 pandemic a crisis for digital rights. This crisis shows no signs of abating.

The rapid nature of the pandemic response has empowered governments to rush through policies and emergency measures with little to no legal oversight.

Many states have used the pandemic as an excuse to censor critics and filter information online in their favour. Countries are rolling out contact-tracing apps and biometric technology to track citizens’ movements, communications and health data in relation to the pandemic. And as governments reduce lockdown restrictions, new risks are emerging with the introduction of measures that increase inequalities related to freedom of movement, access to public spaces, and the ability to work and access essential services.

There are already examples of strategic litigation being used to halt digital rights violations taking place during the pandemic. In Israel, human rights organisation Adalah successfully challenged the tracking of cell phones by the Israel secret service. In France, judges banned the use of surveillance drones to monitor public compliance with coronavirus-related restrictions after La Quadrature Du Net and La Ligue des Droits de l’Homme filed a lawsuit against the Parisian police. In the UK, Open Rights Group are preparing a legal challenge to the National Health Service’s coronavirus test-and-trace programme.

In Israel, human rights organisation Adalah successfully challenged the tracking of cell phones by the Israel secret service

But these cases are just the tip of the iceberg. Activists and litigators need more resources to take litigation to mitigate the negative consequences of the human rights violations occurring during the COVID-19 pandemic. We set up the COVID-19 Litigation Fund for this purpose.

What is the COVID-19 Litigation Fund?

DFF has been working with digital rights litigators and activists across Europe since 2017, and providing grants to support strategic litigation to advance digital rights since 2018. We fund cases that demonstrate potential to bring about legislative, policy or social change, and to have an impact extending beyond the parties directly involved in the case.

The digital rights violations occurring under the COVID-19 pandemic are unprecedented and need to be challenged as a matter of urgency. Thanks to support from the Open Society Foundations, we were able to create a dedicated fund to support activists and litigators to take rapid response strategic cases related to the COVID-19 pandemic.

The first call for applications under the COVID-19 Litigation Fund will close on 28 June, and grants will be contracted with successful applicants in late August 2020. Grants will support litigation through the whole process, from first instance to the final appeal stage.

Funding is not limited to digital rights organisations. We also encourage applications from other organisations

Recognising that there is a “digital divide” that limits access to justice and increases hardship for some people, DFF will prioritise applications that focus on addressing the negative impact felt by the most vulnerable groups in society. Funding is not limited to digital rights organisations. We also encourage applications from other organisations, where digital rights violations have occurred in the context of other work, such as health, social justice or poverty.

Applying for a Grant

The call for applications under the COVID-19 Litigation Fund is open from 8-28 June 2020. If you have a case challenging digital rights violations related the COVID-19 pandemic we encourage you to apply.

The call for applications under the COVID-19 Litigation Fund is open from 8-28 June 2020

Of course, you may have identified an issue but you are not yet ready to litigate. We are working on mobilising resources to allow for a second call for applications later in 2020, but are unable to confirm that at this time. So continue to watch this space. And: if you have an idea for a case or for litigation not related to COVID-19, please head over to our main grants page and apply for a grant now!

Taking the Competition Law Conversation Online

By Nani Jansen Reventlow, 4th June 2020

Today, DFF successfully wrapped up its first wholly virtual event, which focused on competition law. Participants around the world joined us to workshop case ideas around self-preferencing and actions involving data.

In December last year, DFF organised a 1.5 day training in Brussels to explore how digital rights litigators could harness the competition law framework to further their work on issues such as data protection and freedom of expression. The meeting, with participants from Europe, the US and Latin America, was organised in response to direct requests from our network to provide more opportunities for knowledge and skill building in this area.

The December training was not only an opportunity to learn and exchange experiences using the competition law framework to advance digital rights, it also helped identify topics that participants wanted to further work on and explore potential cases on.

We were very much looking forward to doing this deeper dive in person and were planning a 2-day meeting in Berlin when the Covid-19 pandemic hit Europe. With no clear view as to when or if in-person meetings would be possible in the short term, we decided to move online to workshop case ideas around self-preferencing and actions involving data, as our network had requested.

Day #1 Visualisation

This in and of itself was a great learning experience: how do you create an online event that allows participants to get similar learnings and interactions as from a two-day meeting, while keeping “Zoom fatigue” at bay? We ended up running two sessions of 2.5 hours each in the course of an afternoon and morning.

Ahead of the workshop, we made a number of online resources available, including a set of one-pagers and videos focusing on competition law issues relevant to the workshop. 

Besides the obvious lessons (re)learned –– for example, that introduction rounds always run over, and especially online! –– we think this was a successful first online event.

Participants grappled with questions around to what extent competition law interacts with digital rights issues, such as data protection and freedom from discrimination

Participants grappled with questions around to what extent competition law interacts with digital rights issues, such as data protection and freedom from discrimination, and case ideas were formulated around some potentially anti-competitive practices that are playing out in the digital context, from intermediaries privileging their own products and services to the exclusion of others, to online platforms leveraging their access to user data to abuse their dominant position over various markets.

Day #2 Visualisation

Equally important, some conversations led to the conclusion that competition law actually wasn’t the right framework to tackle certain issues, which is a key learning in and of itself. 

One of the main conclusions was that we could have spent much more time discussing these topics, and developing case ideas. We are mapping next steps, including the possibility of offering some dedicated support for case development and litigation in this area.

Stay tuned for updates and, as always, if you have any thoughts or suggestions you’d like to share with us, please don’t hesitate to get in touch!

Participants at the workshop

As We Fight Climate Change, Let’s Not Forget Digital Rights

By Nani Jansen Reventlow, 4th June 2020

It is a sad reality that World Environment Day, which takes place this Friday, June 5th, can hardly be considered a joyous celebration of the world around us. Rather, the day serves as yet another much-needed call to action to tackle pressing environmental problems.

As the climate catastrophe looms, environmental issues will inevitably overlap with digital rights on multiple planes. Climate change has grave implications for human rights, and many of those rights relate to privacy, surveillance, AI, data, and the free flow of information – all of which fall under the umbrella of digital rights.

Nobody can deny that we are in dire need of innovative solutions, including technological ones, to tackle this unprecedented crisis. But at the same time, we must ensure that new technologies respect our human rights.

The COVID-19 pandemic has thrown into sharp relief the tendency to let respect for human rights slide in emergency circumstances. But such a situation is not sustainable and can have grave consequences. That’s why it is absolutely crucial that we don’t sacrifice people’s fundamental rights and liberties as the fight against climate change intensifies.

The COVID-19 pandemic has thrown into sharp relief the tendency to let respect for human rights slide in emergency circumstances

Surveillance

It’s typical in this day and age for governments to respond to crises by rolling out measures that increase surveillance and monitoring of populations. Data can certainly help in assessing situations more accurately, but it also increases government control and threatens people’s privacy and freedoms.

As time ticks on, and climate change renders more areas unliveable, or induces conflict, more and more people are being forced to flee their home countries. Asylum seekers and refugees are often at particular risk when it comes to their digital rights: states often deploy measures, such as biometric data collection and geo-tracking, in order to identify them, track their movements, and conduct “security checks”. As a vulnerable group often without a state willing to defend their interests, asylum seekers are particularly at risk as climate change worsens.

Surveilling environmental activists or hacking their devices is a common way to keep tabs on them or suppress their work

Another group at high risk of digital rights breaches are environmental activists. Defending the environment has become one of the most dangerous jobs out there: many are subjects of harassment and violence, and many have even been killed. Surveilling environmental activists or hacking their devices is a common way to keep tabs on them or suppress their work, which often runs counter to powerful interests. Activists must not only be protected, but encouraged and supported to continue their invaluable work.

Connectivity

One of the core UN sustainable development goals is achieving open and secure internet connectivity for everyone. These days, access to the internet is a crucial equality issue: it’s how we communicate and disseminate information. Having certain pockets of the world locked out from that is therefore a growing human rights issue. Internet shutdowns, for example, tend to signal human rights violations.

The thing is, it’s not just about having access to the internet: it’s also about having access to an internet that supports the free flow of information. When certain information is censored, filtered or blocked, people’s rights are violated, and inequality is exacerbated. That is why human rights must be built into initiatives to roll out internet connectivity, and that schemes carrying out this important job are subject to the requisite human rights assessments.

Digital Design

While many digital technologies are built with the explicit goal of improving sustainability, technology is not universally sustainable: far from it, in fact, with many digital tools themselves being significant drivers of climate change. Mining bitcoin, for example, generates enormous amounts of carbon dioxide, while data centres gobble electricity.

Mining bitcoin, for example, generates enormous amounts of carbon dioxide, while data centres gobble electricity

Our devices, from smartphones to laptops, consume vast amounts of energy. With tech giants offering us shiny new products each year, we’re also consuming greater numbers of electronics and disposing of them, leading to a lot of unnecessary “e-waste”. This isn’t always the consumer’s fault, of course – nowadays, many devices are built to break.

As well as this, new tools that seek to increase sustainability may threaten digital rights in other aspects. Precision agriculture, for example, is being hailed as a sustainable saviour, but it uses artificial intelligence, which can pose challenges for digital rights, due to lack of transparency or bias. 

This World Environment Day, we will hopefully be able to make advances and consider new and cutting-edge solutions to the climate crisis. But as we move forward in the process and put the environment to the top of our priorities, let’s not overlook digital rights. By considering both, we can work towards a more sustainable and equitable world.

Photo by NASA on Unsplash